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Writ Petition No. 3097 of 1982, decided on 14th November, 1982.

‑‑ S. 13(3)(a)(ii), proviso ‑ Eviction proceedings‑‑Cause of action, immaturity of‑Plea of personal need although not available to land lord respondent on day he moved application for eviction of petitioner for reason of stipulated period of tenancy having not by then expired but period of lease having expired during pendency of proceedings, matter, held, entirely of technical significance ‑ Respondent landlord even if not taken plea of personal need in application originally filed he could have moved for amendment of his application to incorporate same as soon as period of lease expired and objection could not have been available to petitioner‑Interference with order of eviction merely to uphold a technical objection and thus force parties to another round of litigation, held further, not in interests of justice Constitution of Pakistan (1973), Art. 199.

Muhammad Yousaf v. Muhammad Ahmad P L D 1978 Lah. 815 ref.

S. 13(3)(a)(ii)(b)‑Eviction ‑ Personal requirement ‑ Contention as to landlord having another land for his requirement‑Landlord stating to require land in dispute to set up rice husking plant‑No evidence indicating other properties owned by landlord being suitable for setting up rice husking plant ‑ Alternate land of landlord being used for setting up a brick kiln, cl. (3) (a) (ii)(b) of S. 13, held, cannot be so construed as to oblige landlord to close down his brick‑kiln and set up his rice husking plant therein.

---S. 13(3)(a)(ii)(b)‑Eviction proceedings‑Mere fact of son instead of father (landlord) having appeared in witness‑box to support plea of personal need, held, of no consequence, particularly when son also attorney of landlord father and he also managed property of his father more than 70 years of age.

Malik Muhammad Qayyum for Appellant.

Khan Saeeuddin Khan for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Dates of hearing: 3rd, 6th and 7th November, 1982.

Respondent No. 1 is the owner of about 4 kanals of land situate within the municipal limits of Okara. By a deed dated 20‑8‑1962 he rented this land to the petitioner for a period of five years beginning from 1‑9‑1962 at a monthly rent of Rs.200, for the setting up of an open cinema. During the continuance of this lease the parties entered into another agreement on 22-1‑1964 whereby the period of lease was extended and the rate of rent was increased. As a combined effect of the two agreements the lease stood extended till 31‑8‑1978. It was stipulated in the later agreement that if respondent No. 1 would get the land vacated before the expiry of the lease period he would pay Rs. 1,70,000 to the petitioner by way of compensa tion. However, that may be on 19‑9‑1977 respondent No. 1 moved an application before the Rent Controller for the eviction of the petitioner from the land on the grounds of default in the payment of rent and personal requirement. The application was resisted by the petitioner. By an order dated 1‑11‑1980 the learned Rent Controller held that there was no default but that the land was required by respondent No. 1 for his personal need. Accord ingly, he directed the eviction of the petitioner. The petitioner went in appeal before the learned Additional District Judge who by his order dated 26‑1‑1982 upheld the findings of the learned Rent Controller and maintained the order of eviction. The petitioner has now moved this Court in constitutional jurisdiction to challenge the orders of the Rent Controller and the Additional District Judge.

2. It may be mentioned that soon after the dismissal of the petitioner's appeal by the Additional District Judge respondent No. 1 took over possession of the land. He continues to be so till today.

3. The first contention on behalf of the petitioner is that on the day when the application for his eviction was filed the period of lease granted in his favour had not expired and as such the application itself was incom petent. In this context he relies upon the first proviso to section 13(3)(a)(ii). This proviso governs the plea of personal need. It states that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply before the expiry of the period of lease. I am afraid I cannot accept the contention of the learned counsel. No doubt on the day when respondent No. 1 moved the application for eviction the plea of personal need was not available to him but then the period of lease expired while the proceedings were still pending before the Rent Controller. Thus, even if respondent No. 1 had not taken the said plea in the application as originally filed he could have moved the Rent Controller for the amendment of his application to incorporate the same as soon as the period of lease expired. In that event the objection now taken by the petitioner would have no foundation whatsoever. In the circumstances it becomes a matter entirely of a technical significance that instead of taking the said plea when the proceedings were pending before the Rent Controller it was advanced at the time when the application for eviction was initially filed. It will hardly be in the interest of justice that I should interfere with the order of eviction in the exercise of writ of justice merely to uphold a technical objection and thus force the parties to another round of litigation. On the other hand it seems more appropriate to assume that the application of eviction in so far as the plea of personal need is concerned was filed on the day when the period of the lease expired. The case of Muhammad Yousaf' v. Muhammad Ahmad (P L D 1978 Lah. 815), upon which the learned counsel for the petitioners relies has no application to the facts before me for, in that case, the period of lease was still not over when the constitutional petition challenging the order of ejectment passed by the Rent Controller and the Additional District Judge was filed.

4. The next contention of the learned counsel for the petitioner is that there was evidence on the record to show that respondent No. 1 also owned other property too in Okara and for that reason the plea of personal requirement was not available to him by virtue of clause (3)(a)(ii)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959. Now, this clause lays down a pre‑condition in respect of the plea of personal need. It reads as follows:‑

"He or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time."

Before the Rent Controller the son of respondent No. 1 who was also his attorney appeared in the witness‑box. He admitted that he owned 1 acres of land which was being used as a brick‑kiln. His case was that he wanted to get the land in dispute vacated for the purpose of setting up a rice husking plant, .There is no evidence which may indicate that the site of the brick‑kiln or the other properties owned by respondent No. 1 are suitable for setting up the said plant. Admittedly, there was another rive‑husking plant situate at a distance of 2 kanals from the land in dispute. Besides, I do not thick that clause (3)(a)(ii)(b) can be construed in a manner which would oblige respondent No. 1 to close down his brick‑kiln .so that he can use the same site for setting up a rice‑husking plant.

5. Finally, the learned counsel for the petitioner contended that the find ings of the learned Additional District Judge and the learned Rent Controller on the plea of personal requirement were based on misreading of the evidence. I have gone through the record and do not find any substance in this submission. The mere fact that instead of respondent No. 1 his son appeared in the witness‑box to support the plea of personal need is of no consequence. It may be mentioned that the son of respondent No. 1 was also his attorney and it appears from his statement that it was he who was managing the property of his father who was over 70 years of age.

6. There is no merit in this writ petition which is hereby dismissed with costs.

S. A. H. Petition dismissed.

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